RESPONDENT TO P3380/2005 AND APPLICANT FOR REVIEW P3382/2005

Hughes v Glen Eira CC [2006] VCAT 1447

With respect to permit application GE/PP-17800/2005, the Responsible Authority's decision to grant a permit is varied.

A permit is granted for the development and use of a child care centre and associated signage at 241 Kooyong Road, Elsternwick generally in accordance with the endorsed plans and subject to the following conditions:

1 Before the commencement of the development and use, amended plans to the satisfaction of the Responsible Authority must be submitted to, and approved by, the Responsible Authority. The plans must be drawn to scale with dimensions and must accord with the amended plans substituted by the Tribunal (identified as vcat04b, vcat05b, vcat06b & vcat07b drawn by Perkins Architects) but modified to show:

(a)

Setbacks of the building from the side and rear boundaries on the floor plans and the height of the rear of the building above natural ground level on the west elevation;

(b)

A plant area for lift overrun, if required;

(c)

A gate into the baby play area, if required;

(d)

The changes to the car park design as contained in the ground floor plan vcat04c dated 18.05.06 drawn by Perkins Architects;

(e)

Boundary acoustic fencing of a maximum height of 2.0 metres above natural ground level except for the fencing adjacent to the southern deck play area that is a maximum of 2.0 metres above the floor level of the deck;

(f)

The first floor timber screens to include Perspex in clear sections, with a height of 2 metres above the floor level and acoustically designed;

(g)

The northern staircase and bin area fully enclosed;

(h)

A schedule of construction materials, external finishes and colours (incorporating paint samples).

When approved, the plans will be endorsed and will then form part of this Permit.

2 Before the commencement of the development and use, a detailed landscape plan to the satisfaction of the Responsible Authority must be submitted to, and approved by the Responsible Authority. When the landscape plan is approved, it will become an endorsed plan forming part of this Permit. The landscape plan must be generally in accordance with the landscape concept design plan LC597 Rev A dated 02/05/2006 prepared by Matthew E McFall Landscape Architects and must incorporate:

(a)

The location and species of all existing vegetation to be retained and removed.

(b)

Buildings and trees (including botanical names) on neighbouring properties within 3 metres of the boundary.

(c)

A planting schedule of all proposed vegetation including botanical names; common names; pot sizes; sizes at maturity; quantities of each plant; and details of surface finishes of pathways and driveways.

(d)

Landscaping and planting within all open space areas of the site.

(e)

A continuous row of evergreen canopy planting from the existing pittosporum tree at the rear of the existing house at 239 Kooyong Road for a length of about 8 metres in an easterly direction. The species selected must achieve a minimum height at maturity of 5-6 metres.

(f)

The inclusion of ground cover species in the northern landscaped area within 2 metres of the driveway entrance to the site.

(g)

The following trees are to be removed:

(i)

Tree 1 - Tasmanian blue gum

(ii)

Tree 7 - Eucalyptus botryoides

(iii)

Tree 10 - Ligustrum lucidum

(iv)

Tree 18 - Coprosma repens

(v)

Tree 22 - Eucalyptus globules

(vi)

Tree 35 - Acmena smithii

3 The development must not commence until a Development Contribution Fee has been paid to the Responsible Authority. The fee payable must be calculated in accordance with the Schedule to the Development Contributions Plan Overlay of the Glen Eira Planning Scheme

Note: A $40.00 administration fee will also be charged.

4 The layout of the site and size, design and location of buildings and works as shown on the endorsed plans must not be altered without the prior written consent of the Responsible Authority.

5 The location and details of the sign as shown on the endorsed plans must not be altered without the written consent of the responsible authority.

6 The sign must not contain any flashing, intermittent or changing colour light.

7 The sign must be constructed and maintained to the satisfaction of the Responsible Authority.

8 Permission for the sign expires 15 years from the date of issue of this Permit.

9 Prior to commencement of the development, a fee of $1320 plus GST must be paid to the Responsible Authority for the removal of the existing street tree and replacement with 2 trees to the satisfaction of the Responsible Authority.

10 Prior to the commencement of the development, a tree protection fence must be erected around the all trees marked for retention at a radius in line with the edge of the canopy drip line to define a 'tree protection zone'.

This fence must be constructed of star pickets and chain mesh (or similar) to the satisfaction of the Responsible Authority.

The tree protection fence must remain in place until construction is completed.

No vehicular or pedestrian access, trenching or soil excavation is to occur within the tree protection zone.

For trees located amongst proposed decking, non root destructive exploratory hand digging by a qualified Arborist is required first in order to determine where tree roots are located and thus where the deck stumps should be sited.

11 No storage or dumping of tools, equipment or waste is to occur within the tree protection zone.

12 The ground surface of the tree protection zone must be covered by a protective 100mm deep layer of mulch prior to the development commencing and be watered regularly to the satisfaction of the Responsible Authority.

13 Any pruning that is required to be done to the canopy of any trees retained on-site is to be done by a qualified Arborist to Australian Standard - Pruning of Amenity Trees AS 4373 - 1996, Standards Australia.

14 Any pruning of the root system of any existing tree to be retained is to be done by hand by a qualified Arborist.

15 Vehicular crossing(s) must be constructed to the road to suit the proposed driveway(s) to the satisfaction of the Responsible Authority and any existing crossing or crossing opening must be removed and replaced with footpath, naturestrip and kerb and channel to the satisfaction of the Responsible Authority.

16 The use must operate only between the hours of 7.00am to 6.30pm, Monday to Friday.

17 A maximum of 90 child care places shall be made available for children on the premises at any one time.

18 The outdoor play areas may not be used by children for recreation and play activities before 9.00am Monday to Friday.

19 Prior to the commencement of the use, a parking management plan must be submitted to and approved by the Responsible Authority. The parking management plan must include:

(a)

How the allocation of car spaces will be managed, including the provision of staff parking during the operating hours and the provision of 11 parent spaces during the morning and afternoon peak periods;

(b)

Which parking bays will be occupied by staff first;

(c)

Availability of parent parking during the middle of the day;

(d)

Arrangements for delivery vehicles;

(e)

Reversing onto Kooyong Road to be avoided;

(f)

Encouraging use of bicycles and shared transport arrangements;

(g)

Intended education of parents and staff about the parking management plan such as through an orientation session or the like.

20 Prior to the commencement of the use, the bus zone signs must be put in place unless otherwise agreed to the satisfaction of the Responsible Authority.

21 Prior to the commencement of the use, the walls on the boundary of adjoining properties shall be cleaned and finished in a manner to the satisfaction of the Responsible Authority.

22 Prior to the commencement of the use, an acoustic fence must be erected along the along the northern, southern and western boundaries of the site and an acoustically treated screen must be erected around the first floor outdoor play areas in accordance with the heights specified in the endorsed plans. The design of the fence and screen must be prepared in consultation with a suitably qualified acoustic engineer. Details of the design and acoustic qualities of the fence and screen must be submitted to, and approved by, the Responsible Authority.

23 Prior to the commencement of the use, the landscaping as shown on the endorsed Landscape Plan must be carried out and completed to the satisfaction of the Responsible Authority.

24 Areas set aside for the parking of vehicles and access lanes as shown on the endorsed plan(s) must be:

(a)

constructed;

(b)

properly formed to such levels that they can be used in accordance with the plans;

(c)

surfaced with an all weather sealcoat;

(d)

drained;

(e)

line-marked to indicate each car space and all access lanes;

to the satisfaction of the Responsible Authority.

25 Car spaces, access lanes and driveways shown on the endorsed plans must not be used for any other purpose.

26 The amenity of the area must not be adversely affected by the use or development as a result of the:

(a)

transport of materials, goods or commodities to or from the land; and/or

(b)

appearance of any building, works, stored goods or materials; and/or

(c)

emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil;

or in any other way, to the satisfaction of the Responsible Authority.

27 No external sound amplification equipment or loudspeakers are to be used for the purpose of announcements, broadcasts, playing of music or similar purpose.

28 No plant, equipment, services or architectural features other than those shown on the endorsed plans are permitted above the roof level of the building without the prior written consent of the Responsible Authority.

29 Adequate provision must be made for the storage and collection of garbage, bottles and other solid wastes in bins or receptacles, to the satisfaction of the Responsible Authority.

30 Collection of waste must not cause any disturbance to nearby residential properties and must only occur between the hours of 6.30am and 8.00pm Monday to Friday to the satisfaction of the Responsible Authority.

31 The landscaping as shown the endorsed Landscape Plan must be maintained, and any dead, diseased or damaged plant replaced in accordance with the landscaping plan to the satisfaction of the Responsible Authority.

32 This Permit will expire if:

(a)

The development and use does not start within two (2) years from the date of this Permit; or

(b)

The development is not completed within four (4) years of the date of this Permit.

The Responsible Authority may extend the times referred to if a request is made in writing before this Permit expires or within three (3) months after the expiry date.

The Responsible Authority is ordered to issue a permit in accordance with this determination pursuant to Section 85(1)(b) of the Planning and Environment Act 1987.

For Applicant for Review P3382/2005 and Respondent to P3380/2005

He called the following expert witnesses to give evidence-in-chief and be made available for cross-examination:

Mr A Clarke, town planner of Matrix Planning Australia;

Mr R Fairlie, traffic engineer of Ratio Consultants; and

He called Mr T Hardingham, traffic engineer of Andrew O'Brien & Associates to give evidence-in-chief and be made available for cross-examination.

For Applicant for Review P3380/2005 and Respondents to P3382/2005

Mr M Verhoeven, planning consultant of Cuskinny Consultants

1 This matter concerns a proposal to construct a new two storey building for use as a child care centre for 90 children on 241 Kooyong Road, Elsternwick. Glen Eira City Council ('the Council') supported the proposal, in part, and issued a Notice of Decision to Grant a Permit. Mr Stanojevic explained the Council approved a 60 place (rather than 90 place) child care centre on the basis of the number of "useable" car spaces.

2 Mr Hughes and other residents are seeking a review of this decision (Application P3380/2005). Perkins Architects are also seeking a review of the Council's approval of a 60 rather than 90 place child care centre, and some of the conditions imposed by the Council (Application P3382/2005) relating to changing the car parking area[1]; increasing setbacks and nominating wall heights[2]; limiting use of the external staircase to emergencies only[3]; and restricting the number of staff present at any one time[4].

3 It appeared from the Tribunal's files on this matter that Mr and Mrs Herz and Mr and Mrs Nankin (who are included in the joint application of Mr Hertz and others) were not original objectors to the permit application. Accordingly, Mr Verhoeven sought leave for them to be joined as parties to these proceedings. There was no objection to this request and I granted leave.

4 Mr Bisset sought leave to substitute amended plans that include changes to the car park layout, a second air conditioning unit, and details of the business identification sign and acoustic fencing. Mr Verhoeven objected to this request because the incorporation of a single rather than circular driveway was less safe and convenient. I advised Mr Verhoeven his objection went to the merits of the case rather than the procedural aspects as to whether substitution of the amended plans should be permitted. The plans have been circulated in accordance with the Tribunal's practice note requirements and I granted leave for the substitution. This means the plans I have considered in making this decision have been prepared by Perkins Architects and are known as VCAT02c dated 04.04.2006; VCAT04b & VCAT05b dated 13.04.06; and VCAT06b, VCAT07b & VCAT08b dated 04.04.06.

5 The hearing took place over 3 days between 22 & 24 May 2006 and, with the consent of the parties, I inspected the site and the back garden of 239 Kooyong Road unaccompanied on 26 May 2006. I have also inspected the traffic and parking conditions along Kooyong Road during the morning and evening peaks on several occasions.

6 The site is located on the west side of Kooyong Road in Elsternwick, mid-block between Seymour Road and Glen Eira Road. It has a frontage of 19.66 metres, a depth of about 70.69 metres and a site area of about 1,356 square metres.

7 The site currently contains a single storey detached dwelling with mature trees in both the front and rear gardens. The site has a fall of about 2 metres from the front to the rear and there are drainage and sewerage easements affecting the rear of the site.

8 The properties immediately surrounding the site are used for residential purposes; whilst a number of properties further south along Kooyong Road are used for medical and community related purposes given the Caulfield General Medical Centre is situated to the southeast of this site.

9 To the north of the site is 239 Kooyong Road, which contains a single storey detached dwelling and a large back garden. The front door to this dwelling is located halfway along its southern side elevation, closest to the subject site.

10 To the west is a two storey block of flats at 87 Seymour Road setback between 2.2 and 2.8 metres from the common boundary with a large number of windows that have an outlook across this site.

11 To the south are three properties:

•

89 Seymour Road abuts the western end of the common boundary and contains a two storey block of flats with a blank two storey wall setback about 1.8 metres from the common boundary;

•

91 and 91A Seymour Road abut part of the middle of the common boundary and comprise a two storey building containing two dwellings, and a carport, garage and service area about 2.2 metres wide adjacent to the common boundary. The northern wall of this building does contain windows with an outlook across the site.

•

241A Kooyong Road abuts the part of the middle and front of the common boundary. It contains a two storey detached dwelling with a driveway along its northern side and a garage in its northwest corner adjacent to this site.

12 The proposal before me (the amended proposal) is to construct a new two storey building and ground level car parking for use as a child care centre for 90 children, 14 full time and 2 part time staff, and operating hours of 7.00am to 6.30pm Monday to Friday.

13 The ground level of the building is setback about 22 metres from Kooyong Road and comprises an entry, office, kitchen amenities and four playrooms of about 50sqm each. The playrooms will accommodate 15 children each and cater for babies and 1-3 year olds. The entry and office are constructed along the southern boundary and connect to the playrooms via a covered deck play area that extends from the building to the southern boundary. The ground floor is generally setback about 4.6 metres from the northern side, other than an open external staircase that is setback 0.5 metre and provides access between the ground and first floor levels.

14 The first floor level contains a staff room, laundry, amenities and two playrooms accommodating 15 children each for ages 3-5 years. These areas are centrally located with partially covered outdoor decked play areas at either end. The front play area is setback about 8.7 metres from the street frontage and extends over the top of a number of the ground level car spaces. This floor level is setback between 1.7 and 5 metres from the southern boundary (except for an internal staircase that is built on the boundary); and it is setback 3.7 metres from the northern boundary (except for the open external staircase).

15 The apex of the roof of the proposed building has a height of between 8.2 and 8.6 metres. Shade cloths are erected over some of the first floor outdoor play areas. The building is to be constructed of brick, weatherboards and a colourbond roof. Various colours of painted weatherboards are included around the first floor outdoor play areas.

16 A business identification sign measuring 1.8 by 0.6 metres (1.08 square metres) is proposed to sit above the front 1.7 metre high picket fence.

17 The car parking area in the frontage of the site is accessed via a central driveway with 7 car spaces on the northern side and 5 car spaces on the southern side. A further 5 car spaces (four of which are tandem spaces) are provided at the western end of the driveway in a garage. As mentioned earlier, the first floor cantilevers over the car parking area so that all but the front two spaces on each side of the driveway are situated under the first floor. Landscaped garden beds are provided in the front setback and along each side of the car parking area.

18 The site is zoned Residential 1 under the Glen Eira Planning Scheme ('the Planning Scheme'). The purpose of this zone includes:

In appropriate locations, to allow educational, recreational, religious, community and a limited range of other non-residential uses to serve local community needs.

19 A permit is required to develop and use this site as a child care centre.

20 There is no car parking rate contained in the Planning Scheme for a child care centre, therefore car parking is required to be provided to the satisfaction of the Council (and, upon review, to the satisfaction of the Tribunal).

21 A Development Contributions Plan Overlay affects this site and requires a monetary payment based on the additional square metres of impervious site area generated by the development. This would be dealt with by imposing a condition of permit requiring this payment.

22 In determining whether to grant a permit for the proposed child care centre, the Planning Scheme requires the relevant State and local planning policies to be considered and, if there are competing policy requirements, they should be balanced in favour of net community benefit. The general decision guidelines of the Planning Scheme also require consideration to be given to the orderly planning of the area and the effect on the amenity of the area.

23 Mr Stanojevic advised the Council considers the amended plans for a 90 place child care centre are appropriate subject to a minimum provision of 18 car spaces (rather than 17 as proposed) and other permit conditions. He explained the Council supports the proposal because:

•

An identified community need would be accommodated by the proposal;

•

The location is suitable in the context of state and local planning policies;

•

The development, with some design changes, is appropriate in its physical context and would not unreasonably impact on neighbourhood character;

•

The intensity of use is reasonable provided the number of child care places is commensurate with an appropriate number of useable and convenient car parking spaces on site;

•

Off-site amenity impacts such as overshadowing, overlooking, noise and visual bulk could be suitably minimised.[5]

24 Mr Verhoeven advised some of the residents he represented opposed the proposal in totality, whilst others felt the capacity of the child care centre should be restricted to 60 children. He cited a number of concerns relating to the implementation of relevant planning policies and amenity impacts of noise, visual bulk, car parking and traffic. I will deal with each of these concerns in turn.

25 Mr Verhoeven pointed out the State planning policies talk about providing an appropriate level of community amenity having regard to the physical environment, urban design and land use separation[6]. He submitted that the Council has placed limitations on the proposal by way of car parking, but has not assessed or imposed limitations based on amenity impacts such as streetscape, visual bulk and noise. In regard to the local planning policies, Mr Verhoeven highlighted this neighbourhood is contained in a minimal change area and submitted the intensity of a 90 place child care centre and the extent of the first floor area are inappropriate in such an area. Mr Verhoeven also submitted the site is not a preferred location under the Non-Residential Uses in Residential Zones local policy.

26 Mr Verhoeven has raised a number of specific concerns about the impacts of the proposal and I will deal with these in due course. However, the first matter I wish to make findings on is the general policy position on child care centres in residential areas, particularly given some of the residents represented by Mr Verhoeven oppose this proposal in its totality.

27 This area is zoned residential and the site is located amongst other existing residential properties. The purpose of the Residential 1 zone acknowledges that some non-residential land uses to serve local community needs will be allowed in residential areas. Hence, the purpose of the zone acknowledges that not all residentially zoned land will be used for residential purposes, it talks about community and education uses (amongst others) that may be appropriate in residential areas and, in my opinion, a child care centre falls into one of these types of land uses. Indeed, the Council's Municipal Strategic Statement ('the MSS') in the Planning Scheme contains a similar view as it states:

Medical centres, churches, child care and kindergartens all, quite clearly, have a place within residential areas[7].

28 My opinion and the view expressed in the MSS are not unique. Mr Stanojevic referred to a decision by Member Cimino of this Tribunal[8] that provides a succinct summation of the general policy position on child care centres in residential areas:

There can be no question that child care centres fall into the category of uses that fulfil an important social need particularly as they are geared towards the care and education of the youngest members of our community. In my view, the planning scheme's policies provide strong "in principle" support for the provision of a facility like this.

In terms of whether such a facility should be provided within a residential area, it is relevant to note that the purpose of the Residential 1 zone recognises that it will be appropriate to allow various commercial uses, including those that serve an educational or community function, within a residential area to serve local community needs. I do not think that there was any question that a child care centre of the type proposed serves a local need, whether it that of residents or other persons who work in the general area.

Further, there is also a relatively long line of decisions where the tribunal and its predecessors have accepted that child care centres are appropriately located in residential areas. For example, in Lloyd v Ballarat CC [2005] VCAT 515 tribunal said: "I agree with Mr Crawford and find, as many other divisions of the Tribunal have in the past, that child care centres are a suitable use in residential settings [see for example Hub Centre Pty Ltd v Whitehorse CC (2004) VCAT1066 (7 June 2004) and Kirby v Mitchell SC (2004) VCAT 633 (7 April 2004)]."

Similar conclusions were reached in Attard v Moonee Valley CC [2003] VCAT 754 and Matthews v Glen Eira CC [2002] VCAT 1338.

It is fair to say that a child care centre is a commercial venture; however, as has been demonstrated by the approach taken by the tribunal in the cases cited above, this in itself does not make the use inappropriate within a residential setting. ...[9]

29 Despite this general policy support for child care centres in residential areas, it remains necessary to have regard to other relevant policies, particularly the Planning Scheme's local planning policies. Mr Verhoeven referred to the Minimal Change Area local policy but I have not given this policy any weight as it states it applies to all residential development requiring a planning permit on land zoned Residential 1, and this proposal is not a residential development. I am of the view the more relevant local policy is the Non-Residential Uses in Residential Zones local planning policy ('the non residential uses policy'), which the MSS advises has been developed to ensure such uses integrate into residential areas with minimal impact or loss of residential amenity.

30 Mr Verhoeven submitted this site is not in a preferred location for a non-residential use pursuant to this policy. There are six policy criteria for preferred locations in the policy but only three of these are relevant as the remainder focus on locations for medical centres, veterinary practices and nursing homes. The three relevant criteria are:

•

Proposed development sites abut a main or secondary road and have vehicular access from a service road or side. Other locations may only be considered where it can be demonstrated that residential amenity will not be compromised.

•

The proposal be located where minimal loss to the local amenity is likely from the operation of the use including the introduction of traffic and parking of cars.

•

The proposal be located within easy walking distance of public transport.

31 Mr Verhoeven acknowledged Kooyong Road is an arterial road (although not designated in the Planning Scheme) and there is a bus stop at the front of this site. However, he explained it is a mid-block location rather than a corner location which creates amenity impacts, particularly in regard to the visual bulk of the building, noise, car parking and traffic. I agree with the parties that the access to Kooyong Road and public transport weigh in favour of this site, but I also agree with Mr Verhoeven that the impact of the proposal upon the residential amenity must be considered in determining if this site is a preferred location. I note the non-residential uses policy contains a number of policy requirements to assist in considering the amenity impacts, and I have had regard to these.

32 Mr Verhoeven was critical of the building form, suggesting the articulation is achieved through the variation in materials and finishes rather than setbacks as it is one long, continuous façade. He suggested greater articulation (including setbacks) is required rather than a standard setback along the entire length of the north elevation of the building. He acknowledged that landscaping along the boundaries can help to screen and integrate a new development, but submitted there are limited landscaping opportunities along the southern side of the site.

33 The non-residential uses policy provides a useful set of policy criteria for the siting and design of new non-residential buildings, including:

i

Graduating changes in building height;

ii

Providing a front setback that respects residential amenity and neighbourhood character;

iii

Providing a building of appropriate height, length and location;

iv

Retaining any significant trees; and

v

Providing a generous landscape buffer between car parking and the street frontage.

34 I find the proposed building height of two storeys is appropriate in this neighbourhood context as it is situated amongst existing one and two storey buildings. A graduation in height from the surrounding one and two storey buildings to a two storey building on this site is an appropriate design response.

35 The Council has imposed a permit condition requiring the maximum height of the western (rear) wall to be 6.2 metres above natural ground level. It is unclear from the side and rear elevations as to what the exact height above natural ground level is, but scaling the plans it appears to be between 6 and 6.7 metres above natural ground level. Mr Clarke gave evidence the wall height is about 6.9 metres based on the ground and floor levels provided. I agree with Mr Bisset's arguments against changing the proposed height as the difference between what is proposed and what the Council wants is minor; there are no unreasonable amenity impacts arising from the difference; there are no objections from the properties to the south and west of this wall; and there is substantial landscaping proposed throughout the site.

36 The building is setback 8.72 metres from the street frontage and, despite acknowledging this setback is greater than that required by clause 55[10], the Council wants a 10 metre setback. Mr Stanojevic explained it is necessary because of the mass of the front gable end and the materials to be used (e.g. the variety of paint colours for the weatherboards). Mr Clarke pointed out the surrounding properties generally have staggered setbacks of between 7 and 13 metres. I have no concerns with the front gable or the variety of paint colours and find the height of the building and the front setback is respectful of the heights and setbacks of surrounding buildings.

37 Mr Verhoeven was critical of the 26.5 metre length of the first floor level and stated it creates considerable visual bulk to 239 and 241A Kooyong Road, particularly to their windows and secluded gardens that face the development.

38 241A Kooyong Road abuts almost half of the site's southern boundary and it has a driveway and garage adjacent to the common boundary. The proposed development encompasses a playroom wall with highlight windows setback about 1.7 metres from the boundary adjacent to their garage and an outdoor deck area setback 5 metres from the boundary with 2 metre high side walls, which is adjacent to their driveway and a small part is situated some distance from a rear elevated terrace area on the southern side of their driveway. I agree with Mr Verhoeven that the outlook to the northern side boundary of 241A Kooyong Road will change as a result of this proposal, however I find a two storey building form in proximity to a garage; an enclosed outdoor deck area separated with a reasonable setback combined with new and existing vegetation on both sides of the common property boundary will not detrimentally impact by way of visual bulk upon the amenity of this property.

39 Mr Verhoeven and Mr Stanojevic focused upon the proposal's impact on the amenity of the back garden of 239 Kooyong Road, and Mr Bisset acknowledged this is main issue with this proposal. The parties referred to a planning permit for the development of 10 dwellings in a two storey building with basement car parking on this site, which was issued on 13 January 2004 as a result of a decision by Senior Member Monk of this Tribunal. The Tribunal decision[11] described 239's back garden in two separate parts, with the part closest to the dwelling being "deserving of seclusion and protection from visual encroachment" and the rear part being "more service oriented". The Tribunal ultimately approved a two storey building that had a 10 metre first floor setback adjacent to the front section of the back garden whilst the balance of the first floor setback was about 4.4 metres.

40 In making this decision, Senior Member Monk was cognisant of the existing trees in 239's back garden that are near the common boundary and provide a visual buffer between the two properties. These trees are still situated on the property, and their maturity means there is a gap of about 7 metres between the rear façade of the house at 239 and the existing trees in the back garden. I find it is this area which is most exposed to any development on the subject site.

41 The proposed first floor level is setback 3.7 metres from the northern boundary with 239 Kooyong Road. The first floor wall projects 2.7 metres further west beyond the rear façade of the house at 239 Kooyong Road; the eaves of the roof project 5.4 metres further west beyond 239's house and the outdoor play area projects 20.7 metres further west. Given the gap is about 7 metres in length from the rear façade of 239, it is the first floor wall, roof and a small portion of the outdoor play area that is adjacent to the gap. The majority of the outdoor play area will be generally screened by the existing trees at the rear of the site and 239 Kooyong Road.

42 I considered whether there was any benefit in moving the rear of the first floor wall so it aligned with the rear façade of the house at 239 Kooyong Road. Mr Bisset provided advice from Perkins Architects after the hearing finished that concluded the first floor could be moved with some alterations to the internal layout of the building. However, this would not result in the building being screened from view from the back garden of 239's house. Similarly, the permit issued for the two storey building containing 10 dwellings would not result in the building being screened from view from 239's garden. I am of the view a better outcome that would minimise the views of the building form from the garden would be the planting of canopy vegetation on this site adjacent to the 7 metre gap between 239's house and 239's existing vegetation.

43 Mr McFall's landscape plan contains two deciduous trees, one on the east side of the existing pittosporum tree in 239's back garden and the other about 8.5 metres further east, alongside part of 239's house. I find this is insufficient to provide an effective vegetation screen between the two properties. I will require a row of continuous canopy planting from the existing pittosporum tree in 239's back garden for a length of about 8 metres in an easterly direction. I will also require that this canopy planting be evergreen rather than deciduous as I consider 239's existing vegetation (which includes evergreen species) provides an effective visual screening of the subject site now and a similar outcome should be achieved within the gap. I am satisfied that this vegetation screen can be planted within the proposed setbacks of the ground and first floor levels, and no further setbacks of the first floor level (as suggested by the Council and Mr Verhoeven) are necessary. Subject to these requirements, I am of the opinion the proposal will not create an unacceptable visual bulk impact upon 239 Kooyong Road.

44 Mr Verhoeven pointed out the deck on the south side of the building is about 1.2 metres above the ground, and he submitted any acoustic fencing along this boundary would need to be at least 2 metres above the deck level, making it a very high fence. Mr Clarke agreed the acoustic fencing should be 2 metres above the deck but stated the height will not create an unreasonable impact upon the neighbouring properties in Seymour Road as it will be situated generally adjacent to service areas. Mr Bisset pointed out no objections have been received from the Seymour Road properties.

45 I agree that the inclusion of acoustic fencing around the decking is a good idea. Having inspected the site, I appreciate the slope of the land means either extensive site cuts or decking on the south side of the proposed building. Given the southern boundary features generally service areas, car parking and outbuildings (including garage structures), I am satisfied there will be no unreasonable visual bulk impacts arising from the proposed acoustic fencing. I note the amended plans and Council's conditions refer to the acoustic fencing being a maximum height of 2.5 metres, but I am of the view this is unnecessarily high and will require it to be reduced to 2 metres.

46 There are a number of existing mature canopy trees scattered across this site and I note Mr McFall's landscape plan includes the retention of a number of them, which is in accordance with the non-residential uses policy.

47 In regard to the frontage, Mr Verhoeven advised the residents would like to see tree 1 (a large blue gum eucalypt tree) retained as he explained they consider it to be a feature of the area. Mr Stanojevic tabled a memo from the Council's Acting Landscape Assessment Officer which stated, amongst other comments:

I would strongly agree that this species, being a very tall forest tree, is too large and unsuitable for an urban area.

I note that the original VCAT determination for approval of 10 double storey units on this site allowed the removal of this tree.

As stated above, while it is theoretically possible to retain this tree within the current proposal, I believe that it is extremely unlikely to be successful.

I note that the applicants are requesting the removal of this tree and suggesting that 2X Chinese Elms could be replaced as part of the new landscaping plan for the front of the site. I would suggest that this is a very reasonable solution for the proposed development of the subject site.

48 I understand the residents' concern as there is no doubt the maturity and height of the tree makes it a feature in the streetscape; however I also agree with the Council that it is too large for an urban area and should be replaced. I accept Mr McFall's evidence that two Chinese Elm trees will form a canopy at the entry to the site and this would be an appropriate response to the removal of the existing tree.

49 Mr Verhoeven expressed concern about noise from the play areas, and particularly argued active open space areas should not be provided at first floor level. He queried why these play areas are so large when the standard requirement is 7 square metres per child and the front area is 146sqm but the requirement is 105sqm, and the rear area is 182sqm but the requirement is half that.

50 As I see it, the concern with the first floor play areas are twofold, being building bulk and noise. For the reasons I have already explained, subject to some particular requirements to address the back garden of 239 Kooyong Road, I have no concerns about the building form and hence I have no concerns about building bulk. So this leaves the concern of noise.

51 It appears that, thus far, the Tribunal has not been presented with many examples of new child care centres with first floor outdoor play areas, but I suspect they will become more commonplace as the demand for child care centres continues and the availability of land to meet the outdoor play requirements of children remains difficult to achieve, particularly in residential areas. The fact that there are first floor play areas does not, in my opinion, create any more noise problems than ground floor play areas. The first floor outdoor play areas are enclosed by 2 metre high timber screens with glass/Perspex infill panels. I am of the view these screens should be acoustically treated to achieve a similar acoustic effect to that intended by the ground level acoustic fencing and I will require this as a condition of permit.

52 It must also be remembered that outdoor play areas are not in use all day, every day. Like all activities in a child care centre, outdoor play is timetabled and occurs for varying lengths of time each day for varying age groups. I note that the proposed hours of operation are 7am to 6.30pm and given the surrounding properties are used for residential purposes, I am of the view it is reasonable to impose a permit condition prohibiting the use of the outdoor play areas for recreation and play activities prior to 9am. Subject to these details, I hold a similar view to the many previous decisions of the Tribunal and its predecessors that have commented "it would be a sad day when residents find the sounds of children at play to be offensive".

53 Mr Verhoeven expressed concern about the noise resulting from siting of the open external staircase on the northern side of the site. The Council has addressed this concern by imposing a permit condition restricting the use of the staircase to emergency access and related drill exercises only. The permit applicant opposes this condition as Mr Bisset explained they want staff and children to be able to use the staircase infrequently to access the ground level play area. I am doubtful about the enforceability of a permit condition restricting the use of the staircase and do not consider this is the best way to address the concerns of 239 Kooyong Road. Instead, I am of the opinion the staircase should be fully enclosed and I will require this as a permit condition.

54 Both the Council and residents expressed concern about the parking provision, and the residents also concerned about the traffic impacts associated with vehicles entering and exiting the site through the single, central driveway.

55 Apparently earlier plans of this proposal included a circular driveway and Mr Verhoeven advised me the residents preferred this arrangement. However, the amended proposal before me does not include a circular driveway and I do not consider it appropriate to consider such a radical change as part of the merits of this amended proposal. Instead, I am of the view this proposal, including its single driveway, should be considered on its merits and if the access is inappropriate, then the proposal fails. Mr Bisset pointed out the Council's traffic engineering department and the two expert witnesses have no objection to the proposed design of a single access point to this site. However, before making my finding on this matter, I think it is best to consider the number of car spaces to be provided on the site.

56 There is no car parking rate specified in the Planning Scheme for a child care centre, therefore the Planning Scheme requires the provision of car parking to be to the satisfaction of the Council and, upon review, to the satisfaction of the Tribunal.

57 The Council considers 18 rather than 17 car spaces should be provided for a 90 place child care centre and relied on the expert evidence of Mr Hardingham to support this view. Mr Verhoeven referred to the City of Boroondara's car parking local planning policy in its Planning Scheme as he submitted it has comparable traffic conditions to Glen Eira and would require the provision of 20 car spaces for this proposal. On this basis, he submitted the provision of 20 spaces was a reasonable car parking projection for this proposal and should be provided on the site because of the high vehicle numbers and speeds in Kooyong Road.

58 I am of the view it is difficult to accord any significant weight to a policy in a different Planning Scheme. Regardless of whether there are any traffic similarities or not between the municipalities of Boroondara and Glen Eira, it is unknown how the policy was derived; how it reached its conclusions as to the outcomes it is seeking to achieve; or whether in fact Boroondara imposes its policy requirements on its child care centres. For all of these reasons, I have not given any significant weight to the argument presented by Mr Verhoeven. Instead, I have given greater weight to the expert evidence presented by Mr Hardingham for the Council and Mr Fairlie for the permit applicant.

59 The expert evidence is that either 17 or 18 car spaces should be provided on the site. I acknowledge both experts gave this evidence on the understanding 3 hour parking restrictions were to be put in place by the Council in Kooyong Road surrounding this site, and I note from recent inspections that this has now occurred. Mr Hardingham is of the view 18 car spaces comprising 10 staff and 8 parent spaces should be provided as in the PM peak period the car park will be full and up to 3 parent vehicles will be parked on street. His evidence appears to assume that the PM peak will occur at around 4.30pm.

60 Mr Fairlie's evidence is 17 car spaces should be provided. His analysis of the PM peak period is more detailed and explains that between 3.00pm and 6.30pm the staff parking rate will decline and the parent parking rate will increase[12], which makes sense as the staff required on site will drop as children are collected. Mr Fairlie concludes on page 12 of his evidence:

Accordingly, with effective management practices the staff parking rate can be controlled to a peak staff parking rate of 0.08 during peak parent times (8.00 to 9.15am and 4.30 to 6.00pm) to ensure that at peak times there is likely to be a peak parking demand of 18 spaces, with the proposed provision of 17 spaces able to accommodate this demand at most times of the day, and a small overflow of on-street parking, which can be readily accommodated within the nearby on-street parking supply.

61 I agree with and adopt Mr Fairlie's analysis. As I see it, the most important aspect to the effective management of the car park is to manage the number of parent parking spaces available during the morning and evening peak periods. Mr Fairlie's analysis is about 11 parent spaces will be generated between the peak periods of 8.30-9.30am and 4.30-6.00pm. Mr Hardingham and Mr Fairlie both made suggestions as to which car spaces in the car park should be allocated to staff and parents. I am reluctant to take a hard line and require a particular number of car spaces for staff and parents as that may well result in some car spaces being empty when they could otherwise be used. I agree with Mr Fairlie's suggestion that a parking management plan be required as a condition of permit which explains how the car park will be managed. This plan can ensure, for example, that 11 parent spaces are provided on site during the peak morning and afternoon periods.

62 Mr Hardingham suggested the number of children in each age group be contained in a permit condition because this would in turn control the required staff numbers and car parking required. Mr Fairlie suggested a condition be imposed restricting staff numbers instead and I note the Council's conditions do include this. I am of the opinion neither suggestion is a good planning outcome for the child care centre. I am satisfied with the provision of 17 car spaces for a 90 place child care centre, and I will restrict the number of children to 90. I will also impose a condition requiring a parking management plan to ensure there are an appropriate number of car spaces made available to parents during the morning and afternoon peak periods. Subject to this condition, I see no reason why the child care centre should not have flexibility to vary the number of children in each age group if the demands vary from year to year.

63 There was discussion by the Council and Mr Verhoeven about the inclusion of a pedestrian path along the southern side of the carpark to provide access to the front door of the centre without children needing to go through the car park. I do not consider this is necessary and adopt the findings of Member Taranto in Unger Architects v Nillumbik SC [2005] VCAT 1251 that state:

I would envisage that users of the childcare centre will, with young children of their own, have a high level of awareness about traffic and pedestrian safety issues. This is likely to encourage cautious driver behaviour including travel at low speed.

64 Mr Fairlie recommended a number of changes to the design of the car park in his expert evidence and tabled a revised version of the ground floor plan (ref. vcat04c dated 18.05.06) illustrating these as well as some other changes, including:

•

The relocation of the disabled car space, turn around bay and bicycle parking area;

•

Resultant minor alterations to the configuration of the external stairway on the north side of the building; and

•

Increased length of car spaces in the garage to 5.4 metres.

65 I consider these changes are appropriate and result in improvements for manoeuvrability, safe and efficient access of the car park.

66 Mr Hardingham stated car spaces 4 and 11 that are situated next to a lattice screen should be 2.6 metres wide for staff or 2.8 metres wide for parents. However, in response to Mr Bisset's cross-examination he agreed 2.6 metre wide spaces are useable and no different to the width of a typical shopping centre car space. Given this, I see no reason to change the width of these car spaces.

67 Mr Hardingham indicated he supports a single driveway based on its width and a restriction preventing right turn movements out of the site, which was a recommendation made by Mr Fairlie that is incorporated into the substituted amended plans. I am satisfied that the provision of one central driveway to access the site is appropriate and will allow for safe vehicle movements on to and off the site.

68 Mr Hardingham and Mr Fairlie agreed the bus zone should be extended by a distance of 5 metres to a position adjacent to the south boundary of the site to discourage short term parking between the proposed driveway and the driveway to 241A Kooyong Road. Mr Bisset suggested a condition be imposed requiring the bus zone signs to be put in place before the use commences, unless otherwise agreed to the satisfaction of the Council. I agree with this suggestion but also wish to make it clear that, if the bus company does not agree to this change, I would still be of the view this proposal has acceptable traffic impacts on Kooyong Road.

69 Mr Hardingham indicated that parking bans could be put in place on the east side of Kooyong Road at a later date if there is a problem with cars turning right into the site blocking traffic for an unreasonable length of time. I consider this is a matter that can be reviewed by the Council if necessary in the future. I am satisfied with the expert evidence provided that the proposed access arrangements are suitable.

70 Based on my analysis of the concerns expressed by the Council and the residents, I find the proposal is in accordance with the policy requirements of the non-residential uses policy and is therefore an appropriate site for a child care centre. I have made a number of findings about modifications required to the details of the proposal, and I have considered the submissions of the parties in regard to the conditions imposed by the Council in its Notice of Decision to Grant a Permit. As a result, I find a permit should be granted and I have varied the conditions.

For the above reasons, the decision of the Responsible Authority to grant a permit is varied. It is ordered that a permit be issued subject to conditions.

[6] Mr Verhoeven referred to clauses 11.03-6, 12.05 and 15.05 of the State planning policies.

[8] Victory Investment Group v Whitehorse CC [2005] VCAT 1863

[9] Paragraphs 33-37 of Victory Investment Group v Whitehorse CC [2005] VCAT 1863

[10] The Council advised a medium density housing development under clause 55 would require a front setback of 7.52 metres.

[11] Select Buildings & Construction Pty Ltd v Glen Eira CC [2003] VCAT 1470

[12] Refer to Table 4.1 on page 12 of Mr Fairlie's expert evidence report.